Hamilton v HSE: an update and clarification

Earlier this month I wrote a blog post about the Hamilton v HSE High Court case that saw Justice Sean Ryan set a couple of precedents that have very serious implications for pregnant women in Ireland and the concept of informed consent.

I was very surprised – pleasantly, mind you – by the attention the article got. It got so much traffic it crashed my website. Thankfully my hosting company came to the rescue and made sure everyone who wanted to read it, could.

My observations and comments in that article were based on what had been reported in the media and on social media channels. Since then, the full judgement has been published by the Courts Service which is a very welcome move as there is much public interest in this case.

The judgement is well worth a read if you have the time but I just wanted to highlight two things in it. One is a clarification on much-quoted “the person entitled and authorised and qualified” issue. The other is on the issue of consent.

Entitled, Authorised and Qualified

Reading the full judgement, it is now clear that this quote was reported by the media out of context. Articles did not clarify that Justice Ryan was speaking to the plaintiff’s claim that the midwife in question should have consulted a senior obstetrician before performing the artificial rupture of membranes procedure. Instead it was widely interpreted that the context was it was the midwife, and not the woman who was “the person entitled and authorised and qualified to make the decision”, including by myself. Obviously, this has very different implications and in fact, I would agree with the judge that midwives are experts in normal birth in their own right and their training and experience should be recognised as separate and autonomous to that of an obstetrician when it comes to normal birth. Superior even, because obstetricians – being experts in complicated and high risk birth – don’t really see that much “normal birth” in the first instance.

Where my worry really lies is still in relation to the issue of consent and in particular this quote here:

Since, on the evidence, this was a routine procedure that Ms Kelliher was carrying out for the purpose of diagnosis to see if her fear of foetal distress was justified or not, it does seem strange that she would not have mentioned to the patient what she was going to do and have obtained her consent. The very fact that it was so routine suggests that the midwife would have done so. I am satisfied that the probability is that Midwife Kelliher obtained the plaintiff’s consent and informed her about the ARM that she was going to perform.

So even though Ms Hamilton stated that she did not consent to the procedure and instead consented to a vaginal examination, Justice Ryan has concluded the above. Midwives and mothers around the country reading this will know only too well, that there are thousands of ARMs performed every year where verbal consent is not sought and is assumed. In this case, the judge is refusing to believe this happened and is choosing to disbelieve the plaintiff, the birthing woman.

This made me wonder if Ms Hamilton had written birth preferences in her file that might have stated whether or not she consented to ARM. Most women with a written birth plan would include their preferences around ARM as standard*. There’s no reference to a birth plan in the judgement which doesn’t mean there was or wasn’t one. It would be very interesting to know if the presence of written birth preference, drawn up antenatally, would have had any implications for the judge’s decision.

No matter, my biggest original concern still stands. This judgement has shown that informed consent is still a huge issue in this country. Ms Hamilton says she didn’t consent. Justice Ryan has said he doesn’t believe the midwife would not have obtained consent. Poor, naive Justice Ryan…but even worse, poor Ciara Hamilton and her son and family who have suffered here due to Justice Ryan’s naivety, and are still suffering.

Finally, this line is beyond infuriating:

The patient’s co-operation was needed in terms of re-positioning on the bed, the procedure might take some time and the implement was quite long, so it is not something that a person would or could do without the knowledge of the patient.

The woman had already stated she consented to a vaginal examination only so the same re-positioning would have been required here. And again, there are many who have experienced it first hand who would strongly disagree that ARM is not something that a midwife or doctor “would or could do without the knowledge of the patient”.

Note also that the testimony of the UK experts that ARM was not an appropriate or evidence-based intervention to perform was dismissed in favour of non-evidenced based, routine, sub-standard practice in Irish maternity units. The issue of Ms Hamilton Group B Strep status was also dismissed, even though this information should have played a very important role in the informed decision-making around performing the ARM in the first place.

A woman’s account of her birth experience and her consent was dismissed here. This is the single biggest issue at the heart of this case. If all was fair and just in the world, the Hamiltons would be before the European Court of Human Rights with this case. But this is Ireland and instead they are lumbered with the costs of the HSE. If you haven’t already, please consider donating to their legal fund through AIMS Ireland here.

Thank you to everyone who read and shared my original post.

*Only approximately 5% of women in Ireland have written birth preferences. This case is an extreme example of why it’s a really really good idea to have written birth preferences. That percentage needs to be flipped on its head to 95%.